Proposed harassment guidance broadens employers’ obligations under EEO law

On October 2, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published in the Federal Register its notice of proposed guidance on “Enforcement Guidance of Harassment in the Workplace.” The guidance incorporates updates reflecting current case law governing workplace harassment and addresses the proliferation of digital technology and how social media postings and other off-work conduct could contribute to a hostile work environment. It further illustrates a wide range of scenarios showcasing actionable harassment.

Covered basis

The guidance makes clear that federal equal employment opportunity (EEO) statutes only protect against harassment if it’s based on an employee’s legally protected characteristics, such as race, color, national origin, religion, sex, age, physical and mental disability, and genetic information.

Building in part on case law over the past 25 years and in part on positions taken by the commission, it goes on to provide that “sex-based” discrimination includes harassment based on pregnancy, childbirth, and other related medical conditions such as a worker’s “reproductive decisions” including “contraception or abortion” and that “sex-based” discrimination incorporates protections for LGBTQ+ workers against harassment based on sexual orientation and gender identity. It also provides protections for “sex-based” stereotyping.